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The Wagner Act and the Federal Circuit Courts of Appeals, 1935-1942

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The Wagner Act and the Federal Circuit Courts of Appeals, 1935-1942 Battle on the Benches: The Wagner Act and the Federal Circuit Courts of Appeals, 1935-1942 DouglasJ. Feeney-Gallagher* I. HISTORY OF THE NATIONAL LABOR RELATIONS ACT AND THE NATIONAL LABOR RELATIONS BOARD'S RELATIONSHIP WITH THE FEDERAL CIRCUIT COURTS The New Deal years witnessed an explosive growth in the size and powers of the federal government as President Roosevelt proposed a series of measures to lift the nation out of the grasp of the Great Depression.' Many of these measures involved the creation of new administrative agencies, each focused on a particular problem or facet of the national economy. To many it seemed that overnight an alpha- bet soup of "new instruments of public power" had emerged and brought under federal regulation whole areas of the national life once considered private and removed from the public sphere.2 Never * Ph.D. in American History, State University of New York at Binghamton. Many people have contributed to this Article. I would first like to thank the editors of the Seattle University Law Review for guiding a first-time author through the publication process. I must also thank Daniel Ernst, Christopher Tomlins, and Katherine Stone for the helpful comments and suggestions they offered when I first presented this paper at the annual meeting of the American Society of Legal His- torians in October 1998. The members of my dissertation committee, Melvyn Dubofsky, Brendan McConville, and Sarah Elbert, also offered valuable insights and contributions to this Article. 1. See DAVID KENNEDY, FREEDOM FROM FEAR: THE AMERICAN PEOPLE IN DEPRES- SION AND WAR, 1929-1945 (1999); WILLIAM LEUCHTENBURG, FRANKLIN D. ROOSEVELT AND THE NEW DEAL (1963); ROBERT MCELVAINE, THE GREAT DEPRESSION: AMERICA, 1929-1941 (1984). Most historians divide the New Deal into two distinct periods: the First New Deal, which is usually seen as running from 1933 through 1934, and the Second New Deal, which begins in 1935. The programs passed during the First New Deal were primarily designed to provide immediate unemployment relief, through programs such as the Civilian Conservation Corp, and to bring industry together to help end the Depression. They were also aimed at lifting up the nation's industrial and agricultural sectors through the NIRA and the AAA. The Second New Deal is generally viewed as the more radical of the two as its programs were far more permanent and far-reaching than those under the first New Deal. The National Labor Relations Act and the Social Security Act were products of the Second New Deal. 2. See Hon. Joseph C. Hutcheson, New Instruments of Public Power or The Administro- Judicial Process and the Struggle for the Supremacy of Law, Address at the Annual Meeting of the State Bar of California 18 (Sept. 26, 1946) (on file with the Seattle University Law Review). Seattle University Law Review [Vol. 23:503 before, except during times of war, had the federal government held or exercised such broad and extensive powers.' By the middle of 1935, federal administrative agencies were busily regulating nearly all facets of the economy. The National Recovery Administration drew up production codes for private corporations,4 the Civilian Conservation Corps provided direct public relief and employment, the Tennessee Valley Authority involved the federal government in regional eco- nomic and social planning, and the Securities and Exchange Commis- sion brought under federal supervision the securities market. Nothing, it appeared to the New Deal's critics, fell outside the scope of federal authority as the new administration attempted to resuscitate the moribund national economy. The most significant federal agency born under the New Deal came to life in July 1935 when President Roosevelt signed the Nation- al Labor Relations Act (NLRA, or the Act), also called the Wagner Act.' Never before in peacetime had the federal government decided to so heavily regulate the private relationship between an employer and his or her workers.6 On the surface, the Wagner Act simply 3. World War I was the last time the federal government played such an active role in directing the national economy. For the most part, the wartime measures ended once the war ended. See DAVID KENNEDY, OVER HERE: THE FIRST WORLD WAR AND AMERICAN SOCI- ETY (1980). 4. The National Recovery Administration was part of the National Industrial Recovery Act, which was passed in 1933. It created a series of production codes for industry in an attempt to bring order back to the industrial sector. The Supreme Court ruled the Act unconstitutional in 1935. See A.L.R. Schechler Poultry v. U.S., 295 U.S. 495 (1935). The Civilian Conservation Corps was established in March 1933 as the federal government's primary unemployment relief program. It provided work for young men mainly on public proj??ects such as road construction, conservation, and flood control. The Tennessee Valley Authority was perhaps one of the most ambitious of the New Deal's programs. Established in 1933, the TVA undertook to revitalize the entire Tennessee River Valley through the development of dams and industry and by providing relatively cheap electricity to the region. 5. See National Labor Relations Act, 29 U.S.C. § 151 (1994) [hereinafter NLRA]. There are several published histories of the National Labor Relations Board. Irving Bernstein was one of the first historians to examine the origins of New Deal labor policy and to examine the birth of the National Labor Relations Act of 1935. James Gross, however, provides a much more detailed account of American labor policy in the New Deal years and focuses much attention on the battles over the NLRA after its passage in 1935. See IRVING BERNSTEIN, THE NEW DEAL COLLECTIVE BARGAINING POLICY (1950); 1 JAMES GROSS, THE MAKING OF THE NATION- AL LABOR RELATIONS BOARD: A STUDY IN ECONOMICS, POLITICS, AND THE LAW, 1933- 1937 (1974); and JAMES GROSS, THE RESHAPING OF THE NATIONAL LABOR RELATIONS BOARD: NATIONAL LABOR POLICY IN TRANSITION, 1937-1947 (1981). 6. During WWI, the federal government forcefully entered the field of labor relations. As wartime orders boosted the economy, the number of strikes began to rise, with over 4,400 in 1917 alone. To ensure that there were no interruptions in the production of wartime goods, Woodrow Wilson established the National War Labor Board (NWLB) in April 1918, and brought under government regulation and supervision the field of labor relations. For workers and organized labor, the entrance of government into the labor relations process, for a change, proved quite helpful. The NWLB forced employers to recognize and bargain with the chosen 2000] Battle on the Benches restated the labor provisions contained in the earlier National Indus- trial Recovery Act, which also protected the rights of workers to organize but had lacked the power to enforce those provisions.7 The NLRA made illegal a whole host of employer actions designed to block the organizational and unionizing efforts of their workers.' The legislation also created a powerful agency with administrative and adjudicative powers to enforce the Act's protections.9 Congress dele- gated to the new National Labor Relations Board (NLRB, or the Board), sweeping powers over the employment relationship. The Board held the authority to charge employers with committing unfair labor practices, conduct administrative trials against the employer, and impose sanctions forbidding the employer from interfering with the right of his or her workers to organize. The existence of the Board challenged traditional managerial prerogatives in the workplace and threatened to fundamentally transform the power relations between workers and their employers. representatives of their workers. For the first time, the government essentially declared that workers had a right to organize and bargain collectively with their employers. With the help of the federal government, the organized labor movement gained over two million members during the war years. Once the war was over, however, the federal government quickly dismantled the wartime labor relations apparatus it had assembled and left workers to their own devices in their postwar battles with employers. See MELVYN DUBOFSKY, THE STATE AND LABOR IN MOD- ERN AMERICA (1994); JOSEPH MCCARTIN, LABOR'S GREAT WAR: THE STRUGGLE FOR INDUSTRIAL DEMOCRACY AND THE ORIGINS OF MODERN AMERICAN LABOR RELATIONS, 1912-1922 (1997). 7. See National Industrial Recovery Act § 7(a), 15 U.S.C. §§ 701, 702 (enacted 1933) [here- inafter NIRA]. Section 7(a) of the NIRA, which used similar language as first written into the Railway Labor Act of 1926 and the Norris-La Guardia Act of 1932, stated that every code of fair competition, agreement, and license approved, prescribed, or issued under this title shall contain the following conditions: (1) that employees shall have the right to organize and bargain collectively through representatives of their own choosing, and shall be free from the interference, restraint, or coercion of employers of labor, or their agents, in the designation of such representatives or in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection; (2) that no employee and no one seeking employment shall be required as a condition of employment to join any company union or to refrain from joining, organizing, or assisting a labor organization of his own choosing. Id. Unfortunately for labor, the Act did not contain any provisions for enforcement of these protections if employers violated them. Enforcement depended upon the will of General Hugh Johnson, the head of the National Recovery Administration, and President Roosevelt, neither of whom appeared eager to make the protections embodied in section 7(a) real. See DUBOFSKY, supra note 6, at 111-13. 8. Chapter 8 of the NLRA forbade employers to "interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7." 29 U.S.C.
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